It only works when it is open — ⓐ I claim no rights other than attribution

Tuesday, December 06, 2011

Copyright or Controlright?

Copyright is funny business. Even in science. Even in Open Access. You would be forgiven for thinking that copyright is all about protecting economic interests. But you would be wrong (though sometimes it is about protecting economic interests, honest).

Let’s examine the case of Open Access. Formal Open Access publishing that is, along the model of author-side payment for the service of publishing. It works like this: a number of authors have written an article (single authorship is quite rare these days) and submitted it to a journal that offers Open Access should the article be accepted after a process of peer review, for the quid pro quo of an amount of money. That amount of money compensates the publisher for the fact that he won’t be able to sell the article anymore (by way of subscription to a journal, for instance) when it is published with Open Access. After all, the article is openly and freely available (that’s what Open Access means) so who would buy it? Sound reasoning.

By the way, paying for the service of publishing one’s article is nothing new. In the past an author paid by transferring copyright (which the publisher could then convert into money by selling subscriptions – in effect selling access rights); in the Open Access model the author pays with actual money. Much more straightforward.

So far, so good. But you would think that if an article is published with Open Access you could actually use it. Simply reading articles is an antediluvian notion, and it is the re-use that makes Open Access worth it. Many Open Access articles can be re-used, and that is usually indicated by a so-called CC-BY copyright licence (Creative Commons Attribution), that requires, where possible, attribution of the authors, which is fair enough in the scientific ego-system. Besides, the authors (or their funders) actually paid for Open Access, so attribute is the least one can do.

But, alas, not all Open Access articles carry a CC-BY licence. Too many have a so-called CC-NC licence, which stands for Creative Commons Non-Commercial. This means that even the slightest possibility that re-use might result in some commercial activity, even if just derived in the second degree, re-use is prohibited. Goodness knows why.

What happens here is really not in the realm of protecting commercial interests any longer. Copyright has morphed from a way to protect legitimate interests into a way of controlling (read ‘restricting’) usage. Of Open Access articles! 1984 revisited! I’m sure it happens without many publishers involved even realizing.

C’mon publishers, the CC-NC licence doesn’t give you a penny more in revenues and it frustrates the hell out of scientists. Please change it to CC-BY. Please.

CC-BY-SA means publisher can count on derivatives being available to them under the same terms they offered for the original -- that's what the SA part requires. If a work is published with CC-BY, a derivative can be offered under CC-BY, but could be offered under any terms (BY-SA, BY-NC, unmitigated copyright, etc) so long as credit is given. Both BY and BY-SA are considered fully free/open. There's no hard and fast rule as to which one to use, but BY-SA tends to be used for works that have homes in highly collaborative projects, such that terms derivatives offered under are immediately relevant (wikis being the canonical example), and BY for works where collaboration in the form of derivatives is more of a latent potential, and it is unknown in what context such will occur (most fully OA journals use BY). Either is certainly a reasonable choice. Much, much referred to BY-NC in all cases!

A few other quick comments on the post above. Controlright is correct. Effectively copyright is not the right to make/distribute/perform/adapt copies, but to legally go after people who do so without your (assuming you're the copyright holder) permission, ie you can try to control what others do. Put more eloquently at the beginning of the copyright primer in "Why Full Open Access Matters" at http://www.plosbiology.org/article/info:doi%2F10.1371%2Fjournal.pbio.1001210

One quibble: "Copyright has morphed from a way to protect legitimate interests into a way of controlling (read ‘restricting’) usage."

Actually, no, copyright grew out of a desire by kings and publishers to exact control and extract rents, and has always been about control. Contemporary copyright is particularly at odds with new technology, but this has happened again and again throughout the last centuries. The history may seem irrelevant now, but I think ascribing to copyright beneficent origins and former protection of "legitimate interests" makes it harder to have robust conversations about information policy, especially on the global and national levels, but also to some extent at institutional and even individual levels.

With regard to "ascribing to copyright beneficent origins and former protection of 'legitimate interests'" I stand by my words, and I never used 'beneficent'. In an exclusively print environment the protection copyright afforded was an appropriate one for legitimate interests.

That said, the issue is that the economic argument often advanced by publishers is not valid anymore, and if it is just control they want one has to question why. I have not seen credible answers to this question.

I think the only economic argument (in relation to OA articles) is the one about reprinting with branding (as Cameron talks about in relation to Nature Comms http://network.nature.com/groups/naturecommunications/forum/topics/6549). Which may suggest an unbranded version is appropriate; essentially what goes into UK PMC under Wellcome funded OA, for example